Garay v. Colvin
Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the foregoing reasons, Pltf's Motion Requesting Remand Based on New and Material Evidence (Dkt. No. 20) and Pltf's Motion for an Order Reversing the Commissioner 039;s Decision (Dkt. No. 22) are DENIED, and the Commissioner's 's Motion for an Order Affirming the Commissioner's Decision (Dkt. No. 27) is GRANTED. A Judgment shall enter for the Deft. and the Clerk's Office is directed to close the cae. (Finn, Mary)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ANGEL MARTIS GARAY,
NANCY A. BERRYHILL,
Acting Commissioner of Social
Case No. 3:16-cv-30122-KAR
MEMORANDUM AND ORDER REGARDING PLAINTIFF’S MOTION
REQUESTING REMAND BASED ON NEW AND MATERIAL EVIDENCE, PLAINTIFF’S
MOTION FOR ORDER REVERSING THE COMMISSIONER’S DECISION, AND THE
DEFENDANT’S MOTION TO AFFIRM THE COMMISSIONER’S DECISION
(Dkt. Nos. 20, 22 & 27)
September 25, 2017
On June 30, 2016, plaintiff Angel L. Martis Garay (“Plaintiff”) filed a complaint pursuant
to 42 U.S.C. § 405(g) (“§ 405(g)”) against the Acting Commissioner of the Social Security
Administration (“Commissioner”), appealing the denial of his claims for Supplemental Security
Income (“SSI”) and Social Security Disability Insurance (“SSDI”). Plaintiff asserts that the
Commissioner’s decision denying him such benefits – memorialized in a March 2, 2016 decision
by an administrative law judge (“ALJ”) – is in error. Specifically, Plaintiff alleges that the ALJ
erred by: (1) failing to find that his impairment met Listing 1.04 in 20 C.F.R. Part 404, Subpart
P, App. 1; (2) ignoring objective evidence corroborating his claims of disabling pain; and (3)
relying, at step five, on flawed testimony from the vocational expert. By a separate motion, also
addressed in this Memorandum and Order, Plaintiff seeks remand of this case pursuant to
sentence six of § 405(g) for presentation of new and material evidence. By his motions, Plaintiff
seeks remand for consideration of new evidence, or, in the alternative, judgment on the pleadings
that the Commissioner’s decision be reversed or remanded for error based on consideration of
the existing evidence (Dkt. Nos. 20, 22). The Commissioner has moved for an order affirming
the decision of the Commissioner (Dkt. No. 27). The parties have consented to this court’s
jurisdiction (Dkt. No. 14). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the following
reasons, the court DENIES Plaintiff’s motions and GRANTS the Commissioner’s motion.
Plaintiff applied for SSI and SSDI on May 10, 2012, alleging a January 1, 2012 onset of
disability (Administrative Record (“A.R.”) at 195-211). Plaintiff’s applications were denied
initially and on reconsideration (id. at 121-24, 128-131, 133-38). Plaintiff requested a hearing
before an ALJ, and one was held on January 22, 2013, at which time Plaintiff claimed disability
due to hepatitis C, back pain, and anxiety and depression (id. at 44, 49-50, 53, 55). Following
the hearing, the ALJ issued a decision on March 28, 2013, finding that Plaintiff was not disabled
and denying Plaintiff’s claims (id. at 8-29). The Appeals Council denied review on May 30,
2014, and the ALJ’s decision became the final decision of the Commissioner (id. at 1-7).
Plaintiff appealed the denial to the United States District Court for the District of Massachusetts,
which reversed the ALJ’s decision and remanded the case in order for the ALJ to properly
consider the side effects, if any, of Plaintiff’s medications. See Garay v. Colvin, Civil Action
No. 14-30138-MGM, 2015 WL 1648748, at *4 (D. Mass. April 14, 2015). A second hearing
was held on October 16, 2015 (A.R. at 610-42). Following the hearing, the same ALJ again
found that Plaintiff was not disabled and denied his claims (id.at 585-609). Plaintiff did not
request review by the Appeals Council, and has exhausted his administrative remedies. This suit
A. Standard for Entitlement to Social Security Disability Insurance
In order to qualify for SSI and SSDI, a claimant must demonstrate that he is disabled
within the meaning of the Social Security Act. 1 A claimant is disabled for purposes of SSI and
SSDI if he “is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 1382c(a)(3)(A); 42 U.S.C. § 423(d)(1)(A). A claimant is unable to engage in any
substantial gainful activity when he “is not only unable to do his previous work, but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B); 42 U.S.C. § 423(d)(2)(A).
The Commissioner evaluates a claimant’s impairment under a five-step sequential
evaluation process set forth in the regulations promulgated under each statute. See 20 C.F.R. §
416.920; 20 C.F.R. § 404.1520. The hearing officer must determine: (1) whether the claimant is
engaged in substantial gainful activity; (2) whether the claimant suffers from a severe
impairment; (3) whether the impairment meets or equals a listed impairment contained in
Appendix 1 to the regulations; (4) whether the impairment prevents the claimant from
For SSDI, the claimant also must demonstrate that the disability commenced prior to the
expiration of his insured status for disability insurance benefits. See 42 U.S.C. § 423(a)(1).
performing previous relevant work; and (5) whether the impairment prevents the claimant from
doing any work considering the claimant’s age, education, and work experience. See id. See
also Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982) (describing
the five-step process). If the hearing officer determines at any step of the evaluation that the
claimant is or is not disabled, the analysis does not continue to the next step. 20 C.F.R. §
416.920; 20 C.F.R. § 404.1520.
Before proceeding to steps four and five, the Commissioner must make an assessment of
the claimant’s “residual functional capacity” (“RFC”), which the Commissioner uses at step four
to determine whether the claimant can do past relevant work and at step five to determine if the
claimant can adjust to other work. See id. “RFC is what an individual can still do despite his or
her limitations. RFC is an administrative assessment of the extent to which an individual's
medically determinable impairment(s), including any related symptoms, such as pain, may cause
physical or mental limitations or restrictions that may affect his or her capacity to do workrelated physical and mental activities.” Social Security Ruling (“SSR”) 96-8p, 1996 WL
374184, at *2 (July 2, 1996).
The claimant has the burden of proof through step four of the analysis, Goodermote, 690
F.2d at 7, including the burden to demonstrate RFC. Flaherty v. Astrue, 2013 WL 4784419, at
*9 (D. Mass. Sept. 5, 2013) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). At
step five, the Commissioner has the burden of showing the existence of other jobs in the national
economy that the claimant can nonetheless perform. Goodermote, 690 F.2d at 7.
B. Standard of Review
The District Court may enter a judgment affirming, modifying, or reversing the final
decision of the Commissioner, with or without remanding for rehearing. See 42 U.S.C. §
1383(c)(3); 42 U.S.C. § 405(g). Judicial review “is limited to determining whether the ALJ used
the proper legal standards and found facts upon the proper quantum of evidence.” Ward v.
Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). The court reviews questions of law de
novo, but must defer to the ALJ’s findings of fact if they are supported by substantial evidence.
Id. (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.1999)). Substantial evidence exists “‘if a
reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to
support [the] conclusion.’” Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769
(1st Cir. 1991) (quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st
Cir. 1981)). In applying the substantial evidence standard, the court must be mindful that it is the
province of the ALJ, and not the courts, to determine issues of credibility, resolve conflicts in the
evidence, and draw conclusions from such evidence. Id. So long as the substantial evidence
standard is met, the ALJ’s factual findings are conclusive even if the record “arguably could
support a different conclusion.” Id. at 770. That said, the Commissioner may not ignore
evidence, misapply the law, or judge matters entrusted to experts. Nguyen, 172 F.3d at 35.
A. The Evidence
Plaintiff was 43 when the second hearing was held (A.R. at 43). He had been
incarcerated for approximately 15 years in Puerto Rico (id. at 42). His prior relevant
employment was as a janitor and a home health aide.
1. Relevant Medical Records 2
Although Plaintiff’s benefits applications were based on claimed limitations resulting from
mental health impairments as well as claimed limitations caused by physical impairments, his
arguments appealing the denial of benefits are only related to his physical impairments and
related functional limitations. Accordingly, the summary of evidence is limited to medical
records relevant to the issues raised by Plaintiff in this appeal.
On April 9, 2012, Plaintiff was seen at the Mercy Emergency Room after taking
medication that belonged to a friend and had been prescribed for muscle aches. Plaintiff was
described as a 40-year-old male with no significant medical history who was physically active,
worked out daily, and was a roofer by trade (id. at 300). His musculoskeletal examination was
normal (id. at 301). On or around May 5, 2012, Plaintiff was transported to the Mercy Medical
Center Emergency Room after he was assaulted. The diagnosis was facial contusions and
fractures and a subdural hematoma. Diagnostic imaging of Plaintiff’s cervical spine conducted
during this emergency room visit showed mild degeneration throughout his cervical spine (id. at
291, 299). A May 24, 2012 image of Plaintiff’s lumbosacral spine showed spondylolisthesis at
L6-S1 3 and degenerative disc disease at this level (id. at 341).
On July 19, 2012, Plaintiff was seen by David Chadbourne, M.D., of Comprehensive
Family Medical Care. Notes from the visit reflect that Plaintiff presented as a well-developed
healthy appearing male in no apparent distress. Plaintiff had back pain but no joint stiffness or
limb pain (id. at 377-78).
On January 8, 2013, Plaintiff was seen at Mercy Medical Center Emergency Room
following a motor vehicle accident. He complained of lower back and right elbow pain and
reported having chronic back pain which was disabling (id. at 393). On examination, Plaintiff
had full range of motion in all joints, was able to ambulate in the emergency room without
difficulty, and had mild lumbar region tenderness. The diagnosis was acute lumbar strain.
Spondylolisthesis is the “forward displacement of a lumbar vertebrae on the one below it and
esp. of the fifth lumbar vertebra on the sacrum producing pain by compression of nerve roots.”
Merriam Webster’s Medical Dictionary 711 (2006).
Plaintiff was prescribed pain medication and directed to care for himself at home and avoid
strenuous activity (id. at 395).
On January 18, 2013, Plaintiff was evaluated by Raghu Bajwa, M.D., of Physical
Medicine and Rehabilitation, as a result of the car accident. Plaintiff presented with neck pain,
shoulder pain bilaterally, with more pain in his right than his left shoulder, lower back pain, and
pain in his right elbow (id. at 530). On examination, Dr. Bajwa observed moderate limitation in
the range of motion in Plaintiff’s cervical spine and tenderness to palpitation (id. at 531). He
found mild limitation in the range of motion in Plaintiff’s left shoulder, moderate limitation in
the range of motion in the right shoulder, and limited range of motion in Plaintiff’s right elbow
(id. at 532). While Dr. Bajwa judged that Plaintiff’s range of motion in his thoracic spine was
within normal limits, he observed moderate limitations in the range of motion in Plaintiff’s
lumbar spine. A straight leg raising test was negative bilaterally. Dr. Bajwa’s initial diagnosis
was cervical muscle and ligament injuries, bilateral shoulder contusions, with the right shoulder
more involved than the left, a right elbow contusion, lumbar muscle and ligament injuries, and a
history of chronic neck, lower back, and bilateral shoulder pain which had been aggravated by
the motor vehicle accident (id. at 533). Dr. Bajwa recommended physical therapy, including a
home-based exercise program, and advised Plaintiff to avoid bending, pushing, or heavy lifting
or other strenuous activity (id. at 534). He opined that Plaintiff was temporarily partially
disabled from January 18 through February 18, 2013, as Plaintiff was experiencing impairment
of his activities of daily living (id.). Plaintiff returned for a follow-up appointment on February
11, 2013, when Dr. Bajwa observed general improvement in Plaintiff’s condition. Plaintiff had a
mild range of motion limitation in his lumbar and cervical spine. He had a mild limitation in the
range of motion in his right shoulder, while the range of motion in his left shoulder was within
normal limits (id. at 536-37). Dr. Bajwa certified that Plaintiff was partially disabled from
February 11 through March 11, 2013 (id. at 537). Plaintiff was advised to continue with his
home exercise program and physical therapy and was given a prescription for Motrin (id.).
Plaintiff received physical therapy at Quality Medical & Physical Therapy from January
11 through March 4, 2013 (id. at 540-551). On discharge, Plaintiff was back to baseline, with
intermittent pain in his neck, back and shoulders ranging from 3 to 5 on a ten point scale, and no
pain in his elbow. His range of motion and overall strength were improved (id. at 544).
In May 2013, Plaintiff was seen at Caring Health Center to establish a primary care
provider (id. at 501). He reported chronic pain in his thoracic and lumbar spine (id. at 503). On
examination, he had a normal range of motion (id. at 504). He was referred for an MRI, which
was conducted on May 22, 2013 (id. at 440). The MRI revealed L5-S1 spondylolisthesis with
bilateral L5 spondylolysis, 4 marked right and moderate left neuroforaminal stenosis at L5-S1
with probable impingement of the right L5 nerve root, and multilevel degenerative disc change,
with the most severe damage being at L5-S1 (id. at 440-43).
Plaintiff was referred for a consultation with neurosurgeon Thomas S. Kaye, M.D., who
reviewed the MRI and examined Plaintiff on September 30, 2013. Dr. Kaye’s examination
showed a marked restrictive range of motion to the back and a positive straight leg raising sign
on the right side. Plaintiff had a mild antalgic gait favoring the right side. Strength and
sensation were intact, and there was no atrophy. The plan was for conservative management,
including physical therapy, pain medication, and possible epidural steroid management (id. at
480-81). In November, 2013, Plaintiff saw Nataliya Lukin, a physician’s assistant at Caring
Spondylolysis is the “disintegration or dissolution of a vertebra.” Merriam Webster’s Medical
Dictionary 711 (2006).
Health Center. Ms. Lukin noted chronic back pain that was aggravated by twisting and bending.
There was no accompanying numbness, leg pain, tingling, or weakness. Anti-inflammatories
provided moderate relief (id. at 568). Ms. Lukin observed a normal range of motion (id. at 569).
Plaintiff’s physical therapy records from November and December 2013 show that his
presentation was consistent with the MRI (id. at 563). He reported a forty percent (40%)
improvement from the treatment, and the physical therapist observed some improvement with
mobility (id. at 553, 559, 563).
A January 9, 2014 electrodiagnostic study conducted by Pioneer Spine and Sports
Physicians, P.C., was normal, showing no evidence of a right tibial or peroneal mononeuropathy,
peripheral neuropathy, muscle myopathy or L2-S1 radiculopathy or lumbar plexopathy. Plaintiff
was noted to be in no acute distress. His gait was antalgic, balanced with a normal cadence. He
was taking Gabapentin for pain (id. at 825-26).
Records from Plaintiff’s physical therapy with Pioneer Sports and Sports Physicians from
February through April 2014 show treatment for lumbar disc degeneration and spondylosis
without myelopathy, and spinal stenosis in the lumbar region. Plaintiff reported pain at 5/10 at
the worst and 3/10 at the best (id. at 829). On April 7, 2014, Plaintiff appeared robust, with no
apparent distress. He stood comfortably erect and walked with a normal gait and station. A
straight leg raise was negative bilaterally (id. at 835-36). Plaintiff reported that physical therapy
had been helpful. He declined a facet or epidural injection (id. at 836). At a follow-up
physician’s visit on April 17, 2014, Plaintiff reported that his back pain was 8/10 at its worst and
that Gabapentin was effective for his right leg cramping (id. at 838). On April 30, 2014, when
Plaintiff reported to resume physical therapy after a fall, he reported to a physical therapist that
limitations with bending continued, and that standing more than twenty minutes and sitting more
than ten seconds increased his pain. He walked with a slow and stiff gait (id. at 841). By May 8,
2014, Plaintiff reported feeling good from his last physical therapy session. He was attending
work meetings and workouts at the YMCA (id. at 848).
On May 22, 2014, Plaintiff was seen at the Caring Health Center for a dislocated left
shoulder. Records from the Caring Health Center dating from August 2014 through May 1, 2015
consistently mention Plaintiff’s reports of chronic lumbar back pain (id. at 945, 951, 954, 956),
and, beginning on October 23, 2014, shoulder pain, bilateral – except in May 2015, when
Plaintiff reported pain only in his left shoulder – without numbness or tingling (id. at 951, 954,
956). An x-ray of Plaintiff’s shoulders taken on October 23, 2014 showed right a.c. joint
arthrosis with no acute abnormality seen, and mild arthrosis of the superior aspect of the left a.c.
joint (id. at 858-59).
From October 20 through November 24, 2014, Plaintiff was seen at Rehab Resolutions,
Inc. for frequent physical therapy sessions. The diagnosis was spondylolisthesis, lumbosacral
spondylosis without myelopathy, and degeneration of the lumbar or lumbrosacral discs (id. at
872). He was discharged due to lack of improvement (id. at 886). These records do not mention
A May 21, 2015 MRI of Plaintiff’s lumbar spine showed nonspecific straightening of the
lumbar spine. In contrast to the MRI conducted on May 22, 2013, there was no spondylolisthesis
or spondylolysis. Vertebral body heights were well-maintained. The May 2015 MRI showed
that at L5-S1, there was some disc desiccation consistent with disc degenerative changes, but
there was no nerve root compression or thecal sac encroachment, and no significant spondylosis,
facet arthrosis, or canal or neural foraminal stenosis. Findings at other levels of Plaintiff’s
lumbar spine were generally consistent (id. at 959).
2. Medical Opinion Evidence
On May 24, 2012, Martin Hernandez-Bem, M.D., of Comprehensive Family Medical
Care, P.C. completed an EAEDC Medical Report in support of a benefits application by Plaintiff
(id. at 324, 333). Dr. Hernandez-Bem checked on the form that there was an impairment to
Plaintiff’s musculoskeletal system and that Plaintiff complained of back pain (id. at 327). He
noted that, on examination, there was back pain “& ROM LS [illegible]” (id. at 328). He
checked boxes on the form indicating that plaintiff’s condition was chronic and no improvement
was expected (id.), and that Plaintiff had a physical, mental health, or cognitive impairment
affecting his ability to work that was expected to last more than a year (id. at 333).
On June 2, 2012, Robin McFee, D.O., a Disability Determination Services (“DDS”)
physician, offered an opinion, based on a record review, of Plaintiff’s physical limitations
resulting from his identified impairment of spine disorders (degenerative disc disease) (id. at 85).
Dr. McFee opined that Plaintiff’s medically determined impairments could reasonably be
expected to produce the pain and other symptoms Plaintiff stated he was experiencing, but not to
the degree alleged (id. at 86). In discounting Plaintiff’s claims about the intensity, persistence
and functionally limiting effect of his symptoms, Dr. McFee relied primarily on the medication
history, and took into account the finding of Margarita Hernandez, Ph.D., that Plaintiff appeared
to be exaggerating his limitations during an in-person consultative mental health examination (id.
at 71-72, 86). Dr. McFee concluded that Plaintiff could occasionally lift and carry up to 20
pounds and could frequently lift and carry up to ten pounds, could stand and sit for up to six
hours in an eight-hour work day, and could push and pull, including the operation of hand or foot
controls, without limitation other than the limitation on lifting (id. at 86-87). She further opined
that Plaintiff could climb ramps and stairs, balance, kneel, crouch, and crawl without limitation,
and could frequently climb ladders or stairs and stoop (id. at 87). On reconsideration, on June
13, 2013, S. Ram Upadhyay, M.D., affirmed Dr. McFee’s assessment, except that he found that
Plaintiff could only occasionally climb ramps, stairs, ladders, or scaffolds, stoop, and crawl, and
was unlimited in his ability to balance, kneel, and crouch (id. at 99).
3. Plaintiff’s Statements
In Plaintiff’s May 6, 2012 function report, which was filled out for him by one Jorge
Montalban (id. at 252), Plaintiff focused primarily on his claimed mental health impairments as a
basis for claiming disability (id. at 245-252). In terms of physical impairments and related
limitations, Plaintiff indicated that he had no problem with personal care activities (id. at 246),
and that his conditions, which included back pain, affected his ability to lift, squat, bend, and sit
(id. at 250). He stated that he could walk for thirty minutes before needing to rest for fifteen
minutes (id. at 250).
During the first hearing, on January 22, 2013, 5 Plaintiff testified that “they” were telling
him they wanted to operate on his back, that something was “pinching,” that his “spinal column
[wa]s deviated,” and that his “whole back was absolutely spread with arthritis” (id. at 44). He
said that because of his back condition, he could not do “strength” work. Sometimes he lost
strength in his legs, and he felt a pinching, pulsating pain that prevented him from sitting in the
chair. He attributed his back problem to being dropped when he was an infant. He stated that
his back kind of “just exploded” on him after he was, first, attacked, and second, in a car
Although the record reflects that Plaintiff testified through an interpreter, the ALJ noted that he
answered questions accurately without waiting for their translation and concluded that he had the
ability to communicate in English (A.R. at 35, 601).
accident, and after those events, back pain prevented him from working (id. at 50-51). He said
his pain level on an average day was at eight or nine, and that with the medication, it went down
to six. The pain, he said, was in his back, waist, and hips, and radiated down his legs (id. at 52).
At the second hearing, held on October 16, 2015 following remand, the ALJ focused
primarily on trying to ascertain what medications Plaintiff was taking, and what side effects, if
any, those medications caused. Immediately before Plaintiff was sworn in, the following
exchange took place:
ALJ: Okay. Let me swear you in and the vocational expert so you can testify
under oath. Please raise –
CLMT: I can’t lift this arm.
ALJ: Okay, you can – he can raise his left hand.
INTR: I can lift this one up until right there, because I have several cuts on my
shoulders and they are going to do surgery. And he is indicating his right arm.
He wants me to put my hand on his right arm, shoulder.
(Id. at 620). Asked about his daily activities, Plaintiff testified that he lived alone in a small
apartment and cooked for himself (id. at 629-630). He used paper plates because washing up
hurt his arms. He had help carrying his laundry to another floor in the building because he could
not carry a lot (id. at 630-31). He had no friends and did not attend church. He generally just
stayed in his apartment talking to his grandmother who died (id. at 631-32).
4. Vocational Experts’ Testimony
At the first hearing, the vocational expert (“V.E.”) testified that Plaintiff’s past relevant
work would be classified as janitor, DOT 381.687-018, which is defined as unskilled and
requiring a medium level of exertion, and home health aide, DOT 354.377-014, defined as semiskilled and requiring a medium level of exertion (id. at 57). These findings were adopted for the
purpose of the second hearing (id. at 634).
At the second hearing, the ALJ posed the following hypothetical to a different V.E.:
Assuming an individual of Plaintiff’s age, with a marginal educational background, who was
able to lift and carry up to 20 pounds occasionally and up to 10 pounds frequently, could not
reach overhead with the right extremity, who could stand and walk for 6 hours and sit for 6 to 8
hours in an 8-hour day, could occasionally stoop, crouch, crawl, kneel, and climb ramps and
stairs, could not climb ladders, ropes, or scaffolds, had no limits on balancing, was able to
understand, remember, and carry out simple, routine, and repetitive tasks without strict
production or pace rates, could respond appropriately to occasional and superficial contact with
the general public and co-workers, without team work or collaboration, and to supervisory
directions and feedback for simple work related matters, could such an individual perform
Plaintiff’s past work or other jobs available in the national economy? (id. at 635-36).
The V.E. responded that such an individual would not be able to perform the jobs that
Plaintiff had performed in the past, but would be able to work as an inspector, DOT code
559.687-074, 6 of which there were approximately 40,000 jobs nationally and 800 in
Massachusetts; assembler, DOT code 706.684-022, 7 of which there were approximately 30,000
positions nationally and 400 in Massachusetts; or sorter, DOT code 222.687-014, 8 of which there
were approximately 30,000 positions nationally and 450 in Massachusetts. The ALJ observed
that the DOT job descriptions for these positions did not address whether the jobs could be
performed without reaching overhead with the right extremity, and asked whether these positions
could be done by an individual with this limitation. Basing his opinion on his experience in
Inspector and Hand Packager, DICOT 559.687-074, Dictionary of Occupational Titles (4th ed.
1991), available at 1991 WL 6833797 (1991).
Assembler, Small Products, DICOT 706.684-022, Dictionary of Occupational Titles (4th ed.
1991), available at 1991 WL 679050 (1991).
Garment Sorter, DICOT 222.687-014, Dictionary of Occupational Titles (4th ed. 1991),
available at 1991 WL 672131 (1991).
contacting employers to discuss the upper extremity requirements in these jobs and placing
individuals in such positions, the V.E. responded that the three positions he had identified did not
require overhead reaching (id. at 636-37).
The V.E. then testified that if the hypothetical was further restricted to permit the
individual in question to change between a sitting and a standing position as often as twice per
hour, the three jobs that the V.E. had identified would still be available, but he would reduce the
number of potential positions by fifty percent (id. at 637). If an individual were off task four
hours a day or absent from work twice a month because of his or her impairments, there would
be no positions available (id. at 638).
Plaintiff’s counsel asked whether an individual employed in the jobs the V.E. had
identified would be required to work in close proximity to other employees. The V.E. testified
that an individual working in the positions he had identified would be required to work in
proximity to, but not in collaboration with, other employees (id. at 639). Plaintiff’s counsel
asked no further questions (id. at 639-40).
B. The ALJ’s Decision
The ALJ followed the five-step sequential evaluation process. At step one, the ALJ
determined that Plaintiff had not performed substantial gainful activity since January 1, 2012, the
alleged onset date (id. at 588). At step two, the ALJ found that Plaintiff had the following severe
impairments: L5-S1 spondylolisthesis with bilateral L5 spondylosis, mild degenerative change
of the lumbar spine, left glenohumeral joint arthrosis (shoulder), depressive disorder not
otherwise specified, schizoaffective disorder, anxiety disorder not otherwise specified,
posttraumatic stress disorder, personality disorder, and polysubstance abuse (in remission for
five years). At step three, she concluded that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of a listed impairment.
She specifically considered Listing 1.04, and concluded that Plaintiff’s severe lumbar back
impairment did not meet this listing because Plaintiff’s medical records showed that Plaintiff
consistently exhibited full strength and normal reflexes (id. at 588).
Before proceeding to step 4, the ALJ found that Plaintiff had the RFC:
to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b). The
claimant can perform occasional stooping, crouching, kneeling, and climbing
ramps/stairs. The claimant has no limits to balancing. He cannot climb ladders,
ropes, or scaffolds. He cannot perform overhead reaching with the right upper
extremity. The claimant may need to alter sitting and standing up to two times
per hour while continuing to work. The claimant can understand, remember and
carry out simple, routine and repetitive tasks throughout an ordinary workday and
workweek with normal breaks on a sustained basis without strict production rate
or strict production pace requirements. He can respond appropriately to
occasional and superficial contact with the general public and coworkers without
teamwork or collaboration. He can respond appropriately to supervisory
directions and supervisory feedback for simple work related matters in the routine
(Id. at 590).
At step four, the ALJ found that Plaintiff could not perform his past relevant work,
because his physical limitations precluded work as a janitor or a home health aide (id. at 600).
At step five, relying on the vocational expert’s testimony, the ALJ concluded that, taking into
consideration the Plaintiff’s age (forty years old at the time of alleged onset), education (limited),
work experience, and RFC, there were jobs that existed in significant numbers in the national
economy that Plaintiff could perform (id. at 600-01). Accordingly, the ALJ concluded that
Plaintiff had not been under a disability from January 1, 2012 through March 2, 2016, the date of
the decision now under review (id. at 602).
C. Plaintiff’s Contentions
1. Plaintiff’s Physical Impairments Did Not Meet Listing 1.04
At step three, an ALJ must determine if the claimant’s impairment or combination of
impairments meets or equals a listed impairment. See 20 C.F.R. § 1520(d). “To meet a listed
impairment, the claimant must show that h[is] impairment or combination satisfies all of the
criteria required in the listing.” King v. Colvin, Case No. 16-cv-146-JD, 2016 WL 4442787, at
*3 (D.N.H. Aug. 23, 2016) (citing 20 C.F.R. § 404.1525(c)(3)). “’An impairment that manifests
only some of those criteria, no matter how severely, does not qualify.’” MacNeil v. Astrue, 908
F. Supp. 2d 259, 264 (D. Mass. 2012) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).
Insofar as relevant to this case, Listing 1.04, entitled Disorders of the spine, requires a
diagnosis of degenerative disc disease, resulting in compromise of a nerve root with:
Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight legraising test (sitting and supine).
20 C.F.R. Part 404, Subpart P, App. 1, § 1.04 A.
The ALJ considered whether Plaintiff met the criteria of Listing 1.04 and concluded he
did not because he consistently exhibited full strength and normal reflexes (A.R. at 588).
Plaintiff contends that he met Listing 1.04 based on the September 30, 2013 preliminary report
from neurosurgeon Thomas Kaye (Dkt. No. 23 at 5). Dr. Kaye’s report substantiates a markedly
restricted range of motion in Plaintiff’s back and a positive straight leg raising sign on the right
side. The report, however, does not substantiate any motor loss or sensory or reflex loss. Dr.
Kaye noted that there was no atrophy and that strength appeared to be intact. He noted as well
that sensation appeared intact and he did not note any loss of reflexes (A.R. at 480). There are
numerous other notations in Plaintiff’s medical records recording intact muscle strength and
negative straight leg raise tests bilaterally (e.g., id. at 395, 533, 809, 825, 836, 894). “Thus, the
ALJ’s decision that [Plaintiff’s] physical impairment does not satisfy the criteria of Listing 1.04
is reasonably supported by objective evidence.” MacNeil, 908 F. Supp. 2d at 265.
2. The ALJ Did Not Ignore Objective Evidence Supporting Plaintiff’s
Claims of Chronic Pain and Substantial Evidence Supported Her Decision.
Plaintiff’s claim that the ALJ failed to consider objective documentation supporting
Plaintiff’s claim of disabling chronic pain is belied by the ALJ’s decision, which included a
detailed longitudinal history of the information in Plaintiff’s medical records, including his
complaints about back and shoulder pain and manifestations of that pain on examination,
diagnostic imaging of his back and shoulders, and treatments for his complaints of back and
shoulder pain, including physical therapy and medication (A.R. at 593-97).
“Once it is found that a claimant has a medically determinable impairment that could
reasonably be expected to produce the claimant’s symptoms, the ALJ must evaluate evidence of
the intensity and persistence of the symptoms, including statements from the claimant.”
Bourinot v. Colvin, 95 F. Supp. 3d 161, 180 (D. Mass. 2015) (citing 20 C.F.R. § 404.1529(c)(1);
§ 416.929(c)(1)). In conducting this evaluation, an ALJ must consider the entire record, and
make findings about the claimant’s credibility. See id.
“If after evaluating the objective findings, the ALJ determines that the claimant’s
reports of pain are significantly greater than what could be reasonably anticipated
from the objective evidence, the ALJ may consider other relevant information.
See Avery [v. Sec’y of Health & Human Servs., 797 F.2d [19,] . . . 23 [(1st Cir.
1986)]. Considerations capable of substantiating subjective complaints of pain
include evidence of: (1) the claimant’s daily activities; (2) the location, duration,
frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4)
the type, dosage, effectiveness and side effects of any medication taken to
alleviate the pain or other symptoms; and (5) any other factors relating to
claimant’s functional limitations and restrictions due to pain. See id. at 22; 20
C.F.R. §§ 404.1529, 416.929(c)(3)(i-vii).
Costa v. Astrue, 265 F. Supp. 2d 265, 272 (D. Mass. 2008); see also Duffy v. Colvin, Civil
Action No. 16-10719-PBS, 2017 WL 3388164, at *6-7 (D. Mass. Aug. 7, 2017). “While the
ALJ is required to consider all of the Avery factors, ’an ALJ is not required to discuss every
Avery factor in [her] decision.’” Botelho v. Colvin, 153 F. Supp. 3d 451, 463 (D. Mass. 2015)
(quoting Silvia v. Colvin, No. 13-11681, 2014 WL 4772210, at *6 (D. Mass. Sept. 22, 2014)).
Here, the ALJ accepted that the Plaintiff’s medically determined physical impairments,
including his back and shoulder impairments, could be expected to cause the pain he claimed to
experience (A.R. at 592). She did not fully credit Plaintiff’s statements about the intensity,
persistence, and limiting effects of his back and shoulder pain for multiple reasons, including that
the longitudinal medical record did not support disabling physical limitations and because
testimony about the effect of his medications was inconsistent with his medical records, where
his care providers regularly noted that he was taking medications without side effects. She
further noted Plaintiff’s ability to bend and lift at the hearing notwithstanding his claims of
intractable back pain, and that his credibility overall was undermined by a determination that he
had not made a valid effort during a portion of a consultative mental health examination (id. at
An ALJ’s assessment of a claimant’s credibility is entitled to substantial deference,
particularly when, as in this case, that assessment is supported by specific findings. See
Bourinot, 95 F. Supp. 3d at 180. There is substantial evidence supporting the ALJ’s finding that
the longitudinal record did not support disabling physical limitations (A.R. at 593). Plaintiff
alleged a January 1, 2012 onset of disability. At his first hearing, he testified that his back pain
“exploded” after he was assaulted and was subsequently injured in a car accident (id. at 51).
While these events may have been traumatic, Plaintiff’s medical records did not support his
claim about their effects on his back. Medical records following the assault showed the injuries
of note were to his head. An x-ray of Plaintiff’s spine following the May 2012 assault showed
no more than “mild degeneration” throughout his cervical spine (id. at 291, 299). Following the
January 2013 car accident, Dr. Bajwa noted moderate limitation in the range of motion in
Plaintiff’s lumbar spine. In March 2013, at the conclusion of physical therapy for the effects of
the car accident, Plaintiff had returned to baseline, with intermittent pain in his neck, back, and
shoulders, ranging from 3 to 5 on a ten point scale (id. at 544).
The most significant objective medical evidence supporting Plaintiff’s claims of disabling
back pain was Plaintiff’s May 2013 MRI, which showed spondylolisthesis and spondylosis at
L5-S-1 with possible nerve root impingement (id. at 440-43). Nonetheless. in September 2013,
when Plaintiff was evaluated by neurosurgeon Thomas Kaye, the plan was for conservative
management, including physical therapy, pain medication, and possible epidural injections (id. at
480-81). See Arruda v. Barnhart, 314 F. Supp. 2d 52, 72 (D. Mass. 2004) (ALJ properly took
into account the fact that claimant’s treatment had been conservative). Notably, by May 2015,
an MRI of Plaintiff’s lumbar spine did not show spondylolisthesis or spondylosis, nerve root
compression, or stenosis (A.R. at 959).
In weighing the evidence concerning Plaintiff’s claim that back pain substantially limited
his ability to lift and carry, the ALJ was entitled to rely on her observation at the hearing that
Plaintiff easily picked up his backpack from the floor with one arm and moved it around. See
Perez v. Sec. of Health & Human Servs., 958 F.2d 445, 447-48 (1st Cir. 1991) (ALJ’s
observations of claimant’s demeanor at hearing constituted substantial evidence for purposes of
meeting the requirements of Avery). Nor did the ALJ err in relying on the observation of
consultative examiner Margarita Hernandez, Ph.D. who opined that Plaintiff appeared to be
exaggerating his symptoms (A.R. at 597-98). See Thompson v. Astrue, Civil Action No. 1011742-JLT, 2012 WL 787367, at *7-8 (D. Mass. Feb. 17, 2012) (Report and Recommendation)
(in evaluating claimant’s credibility, the ALJ was entitled to rely on consultative examiner’s
observations as a basis for concluding that the claimant’s credibility was flawed); see also
Escobar v. Colvin, Case No. 14cv02741-LAB(BGS), 2016 WL 354416, at *13 (S.D. Cal. Jan. 4,
2016) (ALJ was entitled to discount claimant’s credibility based on claimant’s exaggeration of
There was a lack of opinion evidence in the record supporting Plaintiff’s claims of
functional limitations based on back or shoulder pain. Dr. Hernandez-Bem’s May 24, 2012
EAEDC Medical Report was cursory at best and, as the ALJ observed, failed to support the
doctor’s opinion of disability by identifying any functional limitations attributable to Plaintiff’s
physical impairments (A.R. at 594). Dr. Hernandez-Bem’s opinion of disability was not
controlling because, as the ALJ noted, a finding of disability is reserved for the Commissioner
(id. at 594). See SSR 96-5p, 1996 WL 374183, at *6 (July 2, 1996). Further, the EAEDC
Medical Report was “a brief list of checked answers to form questions unaccompanied by
explanation,” Arruda, 314 F. Supp. 2d at 72, and therefore lacked persuasive force. See 20
C.F.R. §§ 404.1527(d)(3); 416.927(d)(3) (“[t]he better an explanation a source provides for an
opinion, the more weight we will give to that opinion”).
In crafting Plaintiff’s RFC, the ALJ gave “some weight” to the opinions of the state
agency medical consultants (A.R. 596-97). “’The amount of weight that can properly be given
the conclusions of non-testifying, non-examining physicians will vary with the circumstances,
including the nature of the illness and the information provided the expert.’” Bourinot, 95 F.
Supp. 3d at 179 (quoting Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994)). “SSA regulations
specifically provide that in appropriate circumstances, ‘opinions from State agency medical and
psychological consultants and other program physicians and psychologists may be entitled to
greater weight than the opinions of treating or examining sources.” Id. at 179-80 (quoting SSR96-9p, 1996 WL 374180, at *3 (July 2, 1996)). Plaintiff has not argued that the ALJ erred by
relying on the opinions of Drs. McFee and Upadhyay. Although these evaluations were made
relatively early in the process, degenerative disc disease is a common condition, and, as the ALJ
noted, following these evaluations, from 2013 through the date of the ALJ’s decision, the
treatment for Plaintiff’s back pain remained conservative (A.R. at 596-97). In these
circumstances, there was no error. See e.g., Duffy v. Colvin, Civil Action No. 16-10719-PBS,
2017 WL 3388164, at *5 (D. Mass. Aug. 7, 2017) (in view of the lack of any treating physician
medical opinions that translated claimant’s impairment into functional limitations, ALJ properly
relied on the opinions of non-examining, non-treating sources as evidence of functional
limitations); Bourinot, 95 F. Supp. 3d at 179-80; Arruda, 314 F. Supp. 2d at 72.
As to Plaintiff’s shoulder pain, the records reflect that Plaintiff’s complaints about
shoulder pain were intermittent and that he sometimes reported more acute pain in his left and
sometimes in his right shoulder. An x-ray of both of Plaintiff’s shoulders in October 2014
showed right a.c. joint arthrosis 9 with no acute abnormality, and mild arthrosis of the left a.c.
joint (A.R. at 858-59). In terms of functional limitations attributable to shoulder pain, the best
evidence in the record was Plaintiff’s statement at the second hearing. He told the ALJ that
“they” were going to do surgery on his right shoulder and he demonstrated the limit on his ability
Arthrosis is “a degenerative disease of a joint.” Merriam Webster’s Medical Dictionary 51
to lift his right arm for the ALJ. The ALJ apparently credited this statement because, based on it,
she incorporated a limitation on overhead lifting with the upper right extremity when she
assessed Plaintiff’s RFC and when she posed hypothetical questions to the V.E. (id. at 597).
The ALJ’s analysis of Plaintiff’s functional limitations attributable to his physical
impairments was supported by substantial evidence in the record and does not warrant remand.
3. The Commissioner Met Her Burden At Step Five.
The ALJ included as a restriction that Plaintiff could not reach overhead with his right
extremity, and, in a variation on her initial hypothetical question, asked whether an individual
who needed to alter sitting and standing once an hour could perform the identified positions.
The V.E. testified, based on his expertise and experience, which he described, that these
restrictions would not preclude performing the positions he had identified. Plaintiff claims that
the ALJ’s reliance on this testimony was error requiring a remand because the ALJ was not
qualified by experience to address variations in the job requirements set forth in the Dictionary
of Occupational Titles. Plaintiff’s contention is unavailing for two reasons.
First, as the government notes, Plaintiff’s attorney did not object to the V.E.’s testimony
at the hearing on the grounds now raised. This omission “undermines Plaintiff’s allegations that
some substantial error occurred.” Pires v. Astrue, 553 F. Supp. 2d 15, 26 (D. Mass. 2008) (citing
Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000); Edwards v. Sec’y of Health & Human
Servs., No. 94-1345, 1994 WL 481140, at *3-4 (1st Cir. Sept. 2, 1994) (unpublished); Torres v.
Sec’y of Health & Human Servs., 870 F.2d 742, 746 (1st Cir. 1989)). “[C]laimants should not be
permitted to scan the record for implied or unexplained conflicts between the specific testimony
of an expert witness and the voluminous provisions of the DOT, and then present that conflict as
reversible error, when the conflict was not deemed sufficient to merit adversarial development in
the administrative hearing.” Carey, 230 F.3d at 146-47. Other sessions of this court have held
that the failure to raise a conflict or an implied conflict between the vocational expert’s
testimony and the DOT serves as a waiver of any such claim. See, e.g., Marques v. Astrue, Civil
Action No. 10-11813-GAO, 2012 WL 925710, at *10 (D. Mass. Mar. 6, 2010) (“[B]ecause [the
claimant] was given an opportunity to cross-examine the vocational expert and neglected to raise
the objection, [the claimant] is barred from raising it at trial.”); Aho v. Comm’r of Soc. Sec.
Admin., Civil Action No. 10-40052-FDS, 2011 WL 3511518, at *14 (D. Mass. Aug. 10, 2011).
If the contention is considered substantively, it fails as a matter of law. The positions
identified by the V.E. in response to the ALJ’s hypothetical all required “reaching frequently.”
See DICOT 599.687-074, 1991 WL 683797 (1991); DICOT 706.684-022, 1991 WL 679050
(1991); DICOT 222.687-014, 1991 WL 672131 (1991). The DOT descriptions of these positions
are silent with respect to any requirement for overhead reaching. The ALJ found that, given
Plaintiff’s recent claims about right shoulder pain, he was precluded from overhead reaching
with his upper right extremity (A.R. at 597). “Adjudicators are obliged to identify and resolve
discrepancies between vocational evidence and the DOT before relying on a vocational expert’s
evidence to support a step 5 finding.” Barker v. Astrue, Civil No. 09-437-P-S, 2010 WL
2680532, at *2 (D. Me. June 29, 2010) (citing SSR 00-4p, 2000 WL 1898704, at *2 (2000)).
There is no actual conflict between the DOT job descriptions and the vocational expert’s
testimony that Plaintiff could perform these jobs. Plaintiff apparently contends that there is an
implied inconsistency between the limitation in the RFC that Plaintiff could not reach overhead
with his upper right extremity, and the DOT requirement of frequent reaching in the three
positions identified by the V.E. The ALJ appreciated that the DOT position descriptions were
silent on the subject of overhead reaching, and addressed this possible latent inconsistency by
asking the V.E. whether reaching overhead was required. The V.E. assured the ALJ that it was
not, and offered that opinion based on his experience, which included contacting employers and
discussing upper extremity requirements, as well as placing individuals in such jobs (A.R. at
636-37). The ALJ’s reliance on this evidence was in accord with SSR 00-4p, 2000 WL 1898704
(Dec. 4, 2000), the SSA ruling designed to clarify the standards for the use of vocational experts
who testify at hearings. See id., at *1.
In pertinent part, SSR 00-4p provides, as to resolving conflicts or apparent conflicts in
occupational information, as follows:
Reasonable explanations for such conflicts, which may provide a basis for relying
on evidence from the VE . . . rather than the DOT information, include but are not
limited to the following: Evidence from VEs . . . can include information not
listed in the DOT. The DOT contains information about most, but not all,
occupations. The DOT’s occupational definitions are the result of comprehensive
studies of how similar jobs are performed in different workplaces. The term
“occupation,” as used in the DOT, refers to the collective description of those
jobs. Each occupation represents numerous jobs. Information about a particular
job’s requirements or about occupations not listed in the DOT may be available in
other reliable publications, information obtained directly from employers, or from
a VE’s . . . experience in job placement or career counseling. . . . If the VE’s . . .
evidence appears to conflict with the DOT, the adjudicator will obtain a
reasonable explanation for the apparent conflict.
SSR 00-4p, 2000 WL 1898704, at *2-3. “In accordance with that language, courts have held that
a vocational expert’s testimony that, in his or her experience, a job is performed differently than
described in the DOT, constitutes a ‘reasonable explanation.’” Barker, 2010 WL 2680532, at *4
(collecting cases). Here, the ALJ appropriately recognized that a possible latent conflict existed
between the DOT job descriptions and the restriction in the RFC on overhead lifting with the
upper right extremity, and posed questions to the V.E. on this point. The V.E. testified to
appropriate experience on which to base his opinion that the jobs he had identified did not
require overhead reaching. “The ALJ was justified in relying on [the resulting] expert testimony.
There was no error at step five of the evaluation process.” Szumylo v. Astrue, 815 F. Supp. 2d
434, 441 (D. Mass. 2011).
4. Plaintiff has not satisfied the standard for remand to the Commissioner.
Pursuant to sentence six of 42 U.S.C. § 405(g), a district court may “at any time order
additional evidence to be taken before the Secretary, but only upon a showing that there is new
evidence which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.” In this case, the so-called new evidence takes
the form of a January 12, 2016 MRI of Plaintiff’s right shoulder and a March 23, 2016 record of
a medical appointment in follow-up to the MRI (Dkt. No. 20-1; Dkt. No. 20-2).
Under sentence six of § 405(g), remand “is appropriate only where the court determines
that further evidence is necessary to develop the facts of the case fully, that such evidence is not
cumulative, and that consideration of it is essential to a fair hearing.” Evangelista v. Sec. of
Health & Human Servs., 826 F.2d 136, 139 (1st Cir. 1987) (citing Scott v. Califano, 462 F. Supp.
240, 242 (N.D. Ill. 1978)). “The mere existence of new evidence in addition to that submitted
before the hearing examiner will not constitute sufficient cause for remand.” Id. (citing Teal v.
Mathews, 425 F. Supp. 474, 481 (D. Md. 1976)). “Plaintiff has the burden of proving that he is
entitled to reversal or remand based on evidence that was not considered by the ALJ.” Rawls v.
Apfel, 998 F. Supp. 70, 75 (D. Mass. 1998). A claimant must prove, first, that there was good
cause for the failure to present such evidence to the ALJ, and, second, that the evidence on the
basis of which he or she seeks remand is material. See id.
“On a cautionary level, the First Circuit has observed that ‘Congress plainly intended that
remands for good cause should be few and far between, that a yo-yo effect be avoided – to the
end that the process not bog down and unduly impede the timely resolution of social security
appeals.’” Plato v. Colvin, Civil No. 1:12-CV-319-DBH, 2013 WL 5348603, at *2 (D. Me. Sept.
24, 2013) (quoting Evangelista, 826 F.2d at 141). “’Typically, a request for a sentence six
remand concerns ‘new evidence . . . tendered after the ALJ decision.’” Plato, 2013 WL
5348603, at *1 (quoting Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001); see also Benitez v. Astrue,
Civil Action No. 11-30021-KPN, 2011 WL 6778534, at *5 (D. Mass. Dec. 20, 2011). “In
general, the administrative record closes once the ALJ issues her decision, regardless of whether
that decision becomes the SSA’s final decision.” Moore v. Astrue, Civil Action No. 11-cv-1936DJC, 2013 WL 812486, at *12 (D. Mass. Mar. 2, 2013) (citing 20 C.F.R. § 405.360). The report
of the January 12, 2016 MRI is not “new” in the sense required to support remand: it was
available before March 2, 2016, the date on which the ALJ issued her decision. That Plaintiff’s
attorney may not have been immediately made aware of the report does not constitute good
cause for failing timely to submit it to the ALJ. Plaintiff bears the burden of producing evidence
in support of his claim. See Benitez, 2011 WL 6778534, at *5. Therefore, Exhibit A, which
predates the ALJ’s decision, “do[es] not provide a basis for remand.” Benitez, 2011 WL
6778534, at *5; Conner v. Barnhart, 443 F. Supp. 2d 131, 134 (D. Mass. 2006).
The medical report submitted as Exhibit B post-dates the close of evidence (albeit only
by three weeks) and therefore arguably qualifies as “new.” But see Moore, 2013 WL 812486, at
*16 (to be considered “new,” evidence must have been unavailable during administrative
proceedings, which includes action at the Appeals Council level). Even when evidence is “new”
for purposes of § 405(g), remand is warranted only when such evidence, had it been before the
ALJ, might have changed the outcome of the ALJ’s decision. See, e.g., id.; see also Evangelista,
826 F.2d at 140. Plaintiff has not shown that the March 23 medical report might have changed
the ALJ’s decision.
The diagnosis of a condition often says little about its severity or the functional
limitations attributable to such a condition. See White v. Astrue, Civil Action No. 10-10021PBS, 2001 WL 736805, at *6 (D. Mass. Feb. 23, 2011). A torn rotator cuff is not per se
disabling. See, e.g., Ross v. Colvin, Civil Action No. 13-11089-PBS, 2014 WL 587849, at *8 (D.
Mass. Feb. 14, 2014) (where plaintiff retained normal levels of strength, sensation, and reflexes,
rotator cuff issues of long duration were not disabling); Troncoso v. Astrue, Civil Action No. 1110726-RGS, 2012 WL 441753, at *7 (D. Mass. Feb. 9, 2012) (allegedly disabling condition was
pain following bilateral rotator-cuff surgeries; denial of benefits affirmed); Matos v. Astrue, 795
F. Supp. 2d 157, 165 (D. Mass. 2011) (rotator cuff problem was not disabling where there was
no evidence of muscle atrophy and medication alleviated pain).
The medical report submitted by Plaintiff as Exhibit B substantiated limits in Plaintiff’s
range of motion in his upper right extremity caused by his torn rotator cuff (Dkt. No. 20-2 at 3).
The ALJ, however, already had before her evidence of the functional limitation attributable to
this impairment because Plaintiff demonstrated at the second hearing how high he could lift his
right arm (A.R. at 620). The ALJ credited Plaintiff’s demonstration of his functional limitations
attributable to his right shoulder impairment, and, accordingly, adjusted the RFC to eliminate the
need for overhead reaching (id. at 635). In this sense, the report is cumulative of the information
Plaintiff provided at the hearing. Other observations in the “Objective” section of the report
would not have been likely to change the ALJ’s decision. Plaintiff was described as appearing to
be in no acute distress, and “unusually muscular and vascular in the upper body, notably
symmetric on both sides considering his symptoms” (Dkt. No. 20-2 at 3). He was observed to
have normal strength, sensation, and reflexes in his upper extremities (id.). Nor would the record
have established a disabling impairment lasting at least a year. Plaintiff’s complaints about pain
in either shoulder are intermittent in the records submitted to the ALJ. The most recent records
documenting shoulder problems reflected that, although Plaintiff reported bilateral shoulder pain,
that pain was more problematic in his left shoulder, which he dislocated in May 2014 (A.R. 854556, 934, 943-44, 956). The tear in Plaintiff’s right rotator cuff and the resulting functional
limitation are not shown by the submitted records to have lasted for at least a year. Exhibit B
addresses treatment options and does not address the likely duration of the limitation on
Plaintiff’s ability to lift his right arm.
Finally, Plaintiff appears to contend that Exhibit B might have changed the ALJ’s
decision because objective medical evidence of this impairment might have changed the ALJ’s
assessment of his credibility. The court disagrees. During his hearing testimony, Plaintiff
appeared in significant respects to be a less than reliable historian. His testimony at the second
hearing about side effects from his medications was inconsistent with his medical records. His
testimony at the first hearing about the condition of his back was inconsistent with the medical
records. Further, a consultative examiner concluded, based on contradictory results during the
examination she conducted, that he was exaggerating his symptoms. These inconsistencies, on
which the ALJ relied for her credibility assessment, would not have disappeared because the
Plaintiff was diagnosed with a rotator cuff tear in 2016.
Because Plaintiff has failed to show a reasonable probability that Exhibit B – or Exhibits
A and B together – would have changed the outcome of the ALJ’s decision, there is no basis for
a second remand of this case. See Moore, 2013 WL 812486, at *13-14; see also Evangelista,
826 F.2d at 141-42.
For the reasons stated, Plaintiff’s Motion Requesting Remand Based on New and
Material Evidence (Dkt. No. 20) and Plaintiff’s Motion for Order Reversing the Commissioner’s
Decision (Dkt. No. 22) are DENIED, and the Commissioner’s Motion for Order Affirming
Decision of Commissioner (Dkt. No. 27) IS GRANTED. A judgment shall enter for the
defendant, and the Clerk’s Office is directed to close the case.
It is so ordered.
Dated: Sept. 25, 2017
/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
United States Magistrate Judge
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